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Unjustified disciplinary proceedings

30 July 2012

Employment Appeal Tribunal

HHJ Pugsley

Instigating disciplinary proceedings in circumstances which do not justify doing so could be a fundamental breach of contract possibly leading to constructive dismissal. But if the disciplinary procedure is immediately brought to an end when an investigation shows that there is no case to answer, then there is less likely to be a fundamental breach.

One evening during Mr A's holiday, the pub manager discovered there was only one employee working in the kitchen when there should have been two. The manager immediately demanded that all three kitchen managers, including Mr A, attend a meeting. None of them did so. Mr A was suspended pending an investigation into his non-attendance in the evening and his failure to attend the meeting.

When the investigators learnt that Mr A had been on holiday at the time, they decided no disciplinary action should be taken and all documents about the disciplinary process were removed from his records.

Mr A resigned claiming to have been constructively dismissed. The employment tribunal, upheld by the EAT, held that there was no fundamental breach. The fairness of the investigation prevented the situation from escalating to what would otherwise have been a fundamental breach.

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